NH Supreme Court: Protecting police from liability more important than rights of man wrongly accused of rape

By PAT GROSSMITHNew Hampshire Union Leader

CONCORD - Police are not obligated to conduct a reasonable investigation in addition to probable cause in order to arrest someone, the New Hampshire Supreme Court ruled Friday.

The decision comes in a civil lawsuit filed by Kenneth Lahm, who sued the town of Tilton and Tilton Police Officer Michael Farrington, for arresting him in 2008 on a charge of second-degree assault, a charge prosecutors later dropped.

The case had harrowing allegations, that Lahm had drugged a Concord woman he met at a Capital City bar and took her to his home where she woke up three days later, naked in his bed with burns and bruises on her body.

Lahm dropped the woman off at Concord Hospital that third day as he was heading to work. She told medical personnel she believed she had been sexually assaulted. She had four beers at the bar, said Lahm gave her two drinks containing Red Bull at his home, that she "passed out" and did not remember anything until waking three days later in his bed, nude and injured. A urinalysis test detected the presence of multiple drugs in her system.

A justice of the peace found probable cause for police to arrest Lahm and, that same day, a district court judge issued a search warrant after finding probable cause that evidence of aggravated felonious sexual assault may be found at Lahm's home.

The SWAT team arrested Lahm at his home in the middle of the night on March 1, 2008, taking him out of his home in his underwear on what was a cold winter night, according to his appeal of Belknap County Superior Court Judge James D. O'Neill's decision tossing his civil suit.

Lahm argued the woman never said he assaulted her and that Farrington failed to discover any information to show how Lahm allegedly caused the burns on the woman's body.

Lahm hired investigators who talked with two employees at the Concord bar who saw both the woman and Lahm. They said, as always, Lahm had no alcohol to drink and the woman was not intoxicated. A clerk at a convenience store where they stopped before going to Lahm's house said both entered the store, were obviously comfortable with each other and that the woman bought condoms and said she and Lahm were going to have a "good night" or something similar.

Lahm's neighbors saw the woman outside the house at least twice during the three days she was allegedly unconscious, once when Lahm and her set off fireworks, which the neighbors watched, and once when the woman went to the neighbor's house to retrieve Lahm's dog that had got loose.

A medical doctor friend of Lahm's said he spoke with the woman by phone about her injuries and she told him she had accidentally fallen onto a wood stove.

And the woman's prior boyfriend of two years described a volatile relationship that involved Concord police five or six times, and said the woman was "an habitual liar" who "tried to get him arrested, in Concord, several times."

Lahm contended once the prosecutor received the information his investigators gathered and other "exculpatory information" the charge was dropped.

He argued had Farrington conducted any investigation beyond just taking the woman's statement, he would have discovered those same facts.

Lahm spent a weekend in jail, accumulated fees and costs for his defense and was subjected to publicity, all harms his defense attorney Michael J. Sheehan wrote cannot be put back into Pandora's box

"They are real and they are devastating," Sheehan wrote. "And if those harms could have been avoided, if that actual innocence could have been uncovered simply through a phone call or two, an interview or two, or by simply questioning the truthfulness of the victim's otherwise uncorroborated story then Lahm should have recourse."

The Supreme Court, however, disagreed. The jurists concluded that immunizing police officers from "extended liability" is an interest that outweighs Lahm's claimed interest in requiring a "reasonable investigation beyond just finding probable cause" prior to arrest.

Lahm argued that Farrington was not under pressure to make a quick decision in the investigation, because the woman was away from Lahm and any crime had occurred days earlier, and he could have spent a day or two learning the facts Lahm's investigators turned up.

The court said if it were to extend the scope of a police officer's duty to investigate beyond establishing probable cause prior to arrest, liability would be unduly and indefinitely extended for police officers. "Such an extension of liability is at odds with the well-established doctrines of probable cause and official immunity," the court said.

The court said the U.S. Supreme Court has noted the standard of probable cause to arrest "like those for searches and seizures, represents a necessary accommodation between the individual's right to liberty and the state's duty to control crime."

The court, citing Everitt vs. General Electric Co., said the public cannot afford for law enforcement personnel to have their judgment shaded out of fear of subsequent lawsuits or to have their energies otherwise deflected by litigation.

"Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice," the court said.